
INTERNATIONAL REGULATIONS OF THE FISH- 
ERIES ON THE HIGH SEAS * <* <* i» ±1 ::* 



From BULLETIN OF THE BUREAU OF FISHERIES, Volume XXVIII, 1908 



Proceedings of the Fourth International Fishery Congress : Washington, ippS 




™&c5&' WASHINGTON :::::: GOVERNMENT PRINTING OFFICE 



1910 




Glass otf3?.3 

Book Es 



Digitized by the Internet Archive 
in 2011 with funding from 
The Library of Congress 



http://www.archive.org/details/internationalregOOfrye 



INTERNATIONAL REGULATIONS OF THE FISH- 
ERIES ON THE HIGH SEAS * <* <* * * <* 



From BULLETIN OF THF BUREAU OF FISHERIES, Volume XXVIII, 1908 
Proceedings of the Fourth International Fishery Congress : Washington, igo8 



6 > 




■3v 



\Ajtn- 



WASHINGTON :::::: GOVERNMENT PRINTING OFFICE :::::: 1910 



S^s 



BUREAU OF FISHERIES DOCUMENT NO. 647 

Issued January, 1910 



FEB 4 1910 



INTERNATIONAL REGULATIONS OF THE FISHERIES 
ON THE HIGH SEAS 



«?» 



By Charles Edward Fryer, I. S. O, F. L. S. 

Superintendijig Inspector, Board of Agriculture a?id 
Fisheries, London, England 

Paper presented before the Fourth International Fishery Congress, 
held at Washington, U. S. A., September 22 to 26, 1908 



91 / 



CONTENTS. 



Page. 

Privileges and claims of the flag 93 

Necessity for combined action 93 

Main objects of international regulations 94 

Seal fisheries 96 

Oyster fisheries of the English Channel 97 

Other Anglo-French conventions 97 

North Sea regulations 98 

Results achieved 100 

Increasing need for international agreement 101 

92 



INTERNATIONAL REGULATIONS OF THE FISHERIES ON THE 

HIGH SEAS. 

By CHARLES EDWARD FRYER, I. S. O., F. L. S., 
Superintending Inspector, Board of Agriculture and Fisheries, London, England. 



PRIVILEGES AND CLAIMS OF THE FLAG. 

The same principle by which the protection of the flag of its proper nation- 
ality is afforded to a vessel on the high seas beyond the territorial limits of its 
country requires that vessel to comply with all the laws of its country, whether 
applicable within or beyond territorial limits, and it is as much within the 
competence of any power to impose restrictions on fishing operations carried 
on by vessels flying its flag in any part of the world, outside of the territorial 
waters of other nations, as it is to regulate the fisheries within its own rivers 
and elsewhere within its domain. But however admirable or necessary such 
restrictions might be, they would necessarily apply only to the subjects or citi- 
zens of the particular State that enacted them, and could not be enforced against 
aliens except by consent. In cases, therefore, where the fisheries prosecuted in 
extraterritorial waters were shared in by fishermen of other states, great hard- 
ship would result unless by international agreement the same regulations were 
made applicable to all fishermen alike, of whatever nationality. 

NECESSITY FOR COMBINED ACTION. 

The hardship thus involved recently received curious illustration in the 
effects of a self-denying ordinance which the herring and mackerel fishermen of 
the county of Cornwall (England) imposed upon themselves in the matter of 
Sunday fishing. For various reasons, partly religious, partly social, partly 
economic, the Cornishmen agreed to regard Sunday as a day of rest from fishing 
and to discountenance not only fishing operations, but also the task of depar- 
ture for or return to the fishing grounds on the Sabbath day. 

This understanding was loyally adhered to until the advent of large numbers 
of competitors from east-coast ports, who, making Cornish harbors their tempo- 
rary headquarters, sought to gather in the harvest of the sea as quickly as pos- 
sible. Not being actuated by the same scruples as the west-country folk, and 
not being in any way parties to the understanding, the newcomers -did not feel 

93 



94 BULLETIN OF THE BUREAU OP FISHERIES. 

themselves called upon to abstain from Sunday fishing; and, notwithstanding 
all appeals, they declined to discontinue their labors on the Sabbath. So much 
resentment was engendered among the Cornishmen that, not being inclined to 
surrender their principles, but having no lawful means of imposing them on 
their visitors, they had recourse to acts of violence, and considerable rioting 
was the consequence. In the absence of laws to the contrary the east-country 
boats were, of course, as much entitled to fish on Sunday as the west-country 
boats were to abstain; and, short of mutual agreement, the only way of settling 
the dispute would have been to pass a law making Sunday fishing illegal on 
the part of all British subjects, at any rate in the particular portions of the sea 
in respect to which the trouble had arisen. But while this would, so far, have 
ended the controversy as between British subjects, it would have resulted in 
a possibly greater grievance and a certainly greater anomaly, since the waters 
in question are frequented by both British and foreign fishermen. It was one 
thing for the Cornishman voluntarily to abstain from fishing on Sunday and to 
leave the ground free to such of his foreign rivals as chose to fish there in his 
absence — especially seeing that the fish so caught were not brought into the 
Cornish markets, but it would have been quite another thing to compel the east- 
country fisherman to desist from catching fish which he was anxious to catch, 
while the foreigner was under no such disability — especially seeing that it was 
not pretended that the prohibition of Sunday fishing would have benefited the 
fisheries as a whole. Without in any way going into the merits of the dispute, 
it is obvious that no form of compulsion in this case would have been tolerable, 
if effective, which was not of universal application, and this could be brought 
about only by the common consent of all the States whose fishermen frequented 
the grounds in question. 

MAIN OBJECTS OF INTERNATIONAL REGULATIONS. 

It seems obvious that, in waters in which the fishermen of any considerable 
number of different nationalities are largely concerned in fishing at the same 
time, not only will there be the greatest necessity for international agreement 
and regulation, but there must exist the greatest diversity of interest, and the 
greatest difficulty will be encountered in devising rules that will be mutually 
acceptable. It is therefore, perhaps, not out of place to consider what have 
been the history, objects, and results of such international regulations as have 
been framed for waters which answer most fully to the above description. 

In none of the seas of the world are such extensive and diverse fishing opera- 
tions carried on at the same time by so large a number of fishermen, of so 
many various nationalities as in the extraterritorial waters of the English 
Channel and the North Sea or German Ocean. Prolific of fish in great variety 
and of the finest quality, and easily accessible to vessels of all sizes belonging 
to at least eight different powers of western Europe whose shores it washes, 



INTERNATIONAL REGULATIONS OF FISHERIES ON THE HIGH SEAS. 95 

the North Sea in particular has for centuries been the resort of an ever-increas- 
ing number of fishing craft of different nationalities; and, with an ever-growing 
demand for the product of their industry, and with the increasing power and 
size of their vessels, especially since the introduction of steam, not only have the 
fishermen been brought into closer and more frequent contact with each other, 
over wider areas, but the opportunities, if not the need, for interchange of com- 
modities between them have also been enlarged. It is natural, therefore, that 
we should find in the case of the North Sea fisheries a greater diversity than 
elsewhere of purposes for which international regulations have been called 
for in relation to the better government, more orderly conduct, and greater 
prosperity of those engaged in their prosecution. 

The main objects toward which the regulations of this character have been 
directed have been fourfold: (i) The protection or further development of the 
fishing industry, as such; (2) the protection of the gear of the fishermen against 
injury; (3) the maintenance of law and order among fishermen; (4) the greater 
security of the lives and persons of the fishermen. These objects are, almost of 
necessity, the same as those which are aimed at in all fishery legislation, whether in 
inland waters or elsewhere, but their relative importance is practically reversed 
in the case of fisheries on the high seas as contrasted with what may be called the 
"domestic" or "national" fisheries. In the latter case, and more particularly 
in regard to river fisheries, not only are the effects of overfishing more readily 
made manifest, and the necessity for protection recognized, but the national 
laws, whether for the development of the particular industry or for the security 
of the property involved, are more easily enforced against all persons alike 
than in extraterritorial waters where differences of custom, of methods, of laws, and 
of language — to say nothing of interests — bring about unavoidable complications. 
Two nations whose fishermen practice different methods of fishing for the same 
kind of fish will not always admit that the same necessity exists for its protection 
or that the same remedy is the appropriate one. Each class of fishermen will 
probably attribute mischief to the method of fishing adopted by the others, and 
the mutual jealousies which exist between, for example, the seiners and the 
drifters, or the trawlers and the line fishermen, of the same nation — each attribut- 
ing to the acts of the other any falling off in the productiveness of the fisheries — 
are intensified when to difference of method is added difference of race. Hence 
the cases are rare in which international agreement has been arrived at with 
respect to regulations aimed directly at the protection of fish against over- 
fishing, alleged or real, on the high seas. 

The instances of the conventions between the United States and Canada 
for the preservation of the fisheries of the Great Lakes, or of the agreements 
between Germany, Holland, and Switzerland with respect to the salmon fisheries 
of the Rhine, are not appropriate to the present essay, since they relate to inland 
waters in which no extraterritorial rights are admitted, and not to the high 



96 BULLETIN OP THE BUREAU OF FISHERIES. 

seas. a Perhaps the most prominent instance of the kind in which international 
regulations were directed to the protection from threatened extermination of a 
marine animal is that of the treaty dealing with the seal fisheries of Bering Sea. 

SEAL FISHERIES. 

It may be objected that, although the pursuit of the seal is popularly classed 
under the head of " fisheries, " the seal itself is not a " fish " and does not there- 
fore properly come within the purview of this essay. But a reference to the 
case is at least admissible on the ground that it serves to bring into prominence 
the fact already alluded to that international agreements for the protection of 
fish from overfishing are conspicuously rare in the case of the high seas. 

The difficulty of proving the existence and effect of overfishing in the case 
of fisheries on the high seas is generally recognized; the movements of the fish 
are not easily traced, the causes of those movements are often unknown, and 
the direct effect of man's operations, either in influencing those movements or 
in reducing the available supply of fish, is generally a matter of inference from 
insufficient data and incapable of proof. But in the case of the seal we are 
dealing with an animal whose movements at the most critical periods of its 
career are open to view and easily observed; whose numbers are capable of 
ascertainment by means of a census sufficiently accurate for all practical pur- 
poses; and on whose destruction a definite limit could be set without serious 
difficulty. It was therefore comparatively easy in this case to bring home to 
all the powers interested the necessity for measures of protection and then to 
induce them to agree on the most obvious restrictions. Whether those restric- 
tions will prove in all respects sufficient for their purpose is a question which 
only further experience can finally answer, but their promise of success is suffi- 
cient to encourage the hope that the end in view will be achieved, and further- 
more that the increase of knowledge as to the habits of fish and as to man's 
influence upon them will be made the basis of any analogous steps that may be 
proposed for international action toward the prevention of overfishing in the 
case of fish properly so-called. 

It may be interesting to note, in this connection, that thirty years ago, by 
agreement between the United Kingdom and the Scandinavian powers inter- 
ested in the seal fisheries of Greenland, the killing of seals on and near the coasts 
of that country was prohibited in any season until a date at which it was esti- 
mated that the young cubs would be able to provide for themselves, and it is 
believed that the supply of seals in the waters in question has considerably 
increased in consequence. 

° The omission from this essay of any reference to the international regulations relating to the 
fisheries carried on in common by the fishermen of the United States, Canada, and Newfoundland is 
just fied on the ground that some of the questions involved are the subject of pending diplomatic 
negotiations between the powers concerned. 



INTERNATIONAL REGULATIONS OF FISHERIES ON THE HIGH SEAS. 97 

OYSTER FISHERIES OF THE ENGLISH CHANNEL. 

The earliest instance of an international agreement for the enforcement of 
a regulation directed toward the protection of seafish from overfishing occurs 
in connection with a convention entered into between the United Kingdom and 
France in 1839, under which regulations were mutually agreed upon for the better 
ordering of the fisheries carried on by the subjects of those two states in the 
English Channel. Here, again, the object of the solicitude of the two powers 
was not a " fish " in the true sense of the word, but a mollusk, namely, the oyster. 
Here, also, the condition precedent existed that it was comparatively easy to 
secure adequate evidence of the necessity for some protection against overfishing. 
This protection took the form of a regulation forbidding the removal of oysters 
measuring less than 2.% inches across the shell, and of a close season of four 
months, during which oyster-dredging was forbidden in the extraterritorial waters 
of the English Channel, while, later on, it was provided that oyster dredges 
should not be carried on board the fishing boats of either country during the pro- 
hibited period, unless kept duly secured by seals affixed by a competent official. 
The dates fixed for the close season, however, were not altogether the most 
appropriate, and, by a later convention arranged in 1867 between the two coun- 
tries, it was agreed that the period should be altered. This latter convention 
was never ratified by France, and, although England took the necessary steps to 
give effect to it, it has never been fully put into operation, but the close season 
for oysters as then determined is maintained by special agreement renewed 
from year to year. 

OTHER ANGLO-FRENCH CONVENTIONS. 

By far the greater part of both these Anglo-French conventions, as well as 
the whole of the more recent conventions relating to the fisheries of the North Sea, 
deals with the several points included under the heads — other than the protection 
of fish — into which the objects in view have been divided; and, although inter- 
national regulations with respect to overfishing are rare, there are numerous 
instances in which the regulations have dealt with the protection of the fishermen 
themselves in either their persons, their morals, or their property. 

Both the Anglo-French conventions above referred to made provision for 
identification marks being affixed to fishing boats operating within the English 
Channel, for keeping certain classes of fishermen as far as practicable apart, so as 
to minimize the risk of damage or conflict, and for establishing a system of 
international sea-police for the proper enforcement of the regulations. The 
great development of fishing operations in the last few years has, apart from 
other considerations into which it is unnecessary to enter here, rendered obsolete 
the greater part of the regulations thus agreed upon, and negotiations are now in 
progress between the two countries for a new convention on wider and more 
modern lines and more fitted to existing conditions. 

B. B. F. 1908 — 7 



98 BULLETIN OF THE BUREAU OF FISHERIES. 

NORTH SEA REGULATIONS 

In the meantime a separate series of enactments applicable to the North 
Sea has been put in force, dealing with a wider range of subjects than were 
contemplated either in 1839 or in 1867. None of these enactments, however, 
affects the question of overfishing. They deal with the human aspects of the 
question only. And, curiously enough, one of the earliest of them was brought 
about, not by overintensity of rivalry between competing fishermen, leading 
to acts of hostility, but by undue familiarity based on mistaken notions of 
friendship and resulting in abuses of a social and moral nature which called 
for interference. 

Out of a system of exchange and barter, at sea, of fish, clothing, and other 
commodities, there had grown up a practice of sending among the fishing fleets 
in the North Sea a number of vessels, known as " coopers," specially fitted for the 
supply of intoxicating liquors, which found a market among certain of the 
fishermen, being sold for money where cash was available, or exchanged for fish 
or other articles. Such opportunities were especially frequent in the case of the 
trawling vessels fishing on what is known as the "fleeting" system. Instead of 
returning to port after each fishing trip the boats of certain companies fish 
together on a given ground, where they are visited day by day by specially fitted 
"carriers" or "cutters" which go the round of the fleet, collect the whole catch, 
and straightway steam back to deliver it in the fish market, returning again to the 
fleet and repeating these operations as long as fish remain sufficiently plentiful on 
the ground. In this way a fleet of trawlers may remain at sea for considerable 
periods, and in these and other circumstances, due to the development of the 
industry, the facilities for surreptitious traffic in drink not only led to the fisher- 
men being exposed to great temptation to dishonesty, but conduced to scenes 
of drunkenness, to acts of violence, to neglect of duty, to insubordination, and 
to danger and disaster in which other and innocent persons were frequently 
involved. 

The result of all this was a convention between the United Kingdom and 
certain neighboring powers known as the North Sea Liquor Traffic Convention of 
1889, whereby heavy penalties were imposed on any persons supplying intoxi- 
cants or tobacco to fishing vessels, except under license from the duly constituted 
authorities. In practice the issue of these licenses is limited to a few vessels 
employed as "mission" or "hospital" ships in connection with the trawling 
fleets, whose visits afford sufficient opportunity for the supply of such liquors as 
are needed for medicinal and other legitimate purposes. The consequence has 
been the entire disappearance of the " coopers " and the almost total abolition of 
the evils which followed in the train of their misdirected enterprise. 

Equally satisfactory results have followed on the adoption of other inter- 
national regulations, for the repression of acts of unprovoked injury to fishing 



INTERNATIONAL REGULATIONS OF FISHERIES ON THE HIGH SEAS. 99 

gear on the high seas, under a convention in which the powers bordering on the 
North Sea are again concerned jointly, so far as regards that part of the ocean. 

In or about the year 1882, very serious complaints were made by British 
drift-net fishermen in the North Sea that it was the practice of certain foreign 
trawlers, chiefly Belgian, deliberately to cut through any drift nets that they 
might encounter and so clear a way for their trawl, continuing on their course 
without waiting to haul their gear and disentangle the net which they had 
fouled. For this purpose they carried a specially constructed iron implement, 
which got to be known as the " Belgian devil," shaped like a three or four pronged 
grapnel of considerable size, the inner sides of whose prongs or arms were fur- 
nished with cutting edges, and which they carried suspended in the water at such 
a depth that it automatically caught the footrope of the drift net, gathered the 
net in a loop, and severed it by the mere action of the trawl boat sailing, or 
steaming, on its course. A committee of inquiry found these complaints to be 
well founded and the result was an international convention forbidding the use or 
possession of any such engine for any such purpose under heavy penalties, and the 
" Belgian devil " has now entirely disappeared from the North Sea. 

Abuses of such kinds as either of those just alluded to will, it may be hoped, 
be rare, but whenever they occur it may be expected that public opinion, in all 
countries, will readily support decisive and prompt conjoint action for their 
suppression. It will, however, be always more necessary and more difficult to 
deal with those other and constantly recurring cases of unavoidable collision, 
more or less serious, between the boats and the gear of men lawfully and peace- 
fully pursuing their various avocations, with different kinds of engines, in the 
same waters. 

Wherever fishermen are attracted in large numbers to the same fishing 
grounds, there is always risk of damage from such a cause. In the North Sea alone, 
such diverse methods of fishing as trawling, seining in various forms, drifting and 
lining — not to mention other and less important modes— are employed at the 
same time within a comparatively narrow area, and often for the same kind of 
fish; and it may easily happen that, with the best intentions in the world, and 
with every desire to avoid all cause of conflict or dispute, the trawler may foul 
the nets of the drifter or the lines of the line-fisherman, or the drifter and trawler 
alike may disturb the seiner. 

To minimize such possibilities the International Code of Navigation Laws 
and of regulations for the lights at sea to be carried by fishing boats at night 
has done something, and so long as those regulations are observed it is com- 
paratively easy for one boat to avoid collision with another or with its gear. 
But, even so, occasional collisions are inevitable unless specified areas are set 
apart on which only one mode of fishing is permitted at one time. Even such 
a remedy as this would not remove all possibility of collision between boats of 



IOO BULLETIN OF THE BUREAU OF FISHERIES. 

the same kind, and there is the further objection that the reservation of par- 
ticular areas to particular classes of vessels would involve great difficulty and 
expense in watching. It is clear, therefore, that after minimizing as far as pos- 
sible the opportunities of collision by a well-considered system of signals, the 
next step is to minimize the damage resulting from inevitable casualties and to 
provide for the restoration of the damaged gear to the owners and for payment 
of compensation for the injuries inflicted. 

With these objects in view the several powers bordering on the North Sea 
have entered into a series of conventions under which a fairly comprehensive 
code of regulations has been adopted, providing for the following matters: 

(i) The clear delimitation of the areas within which the joint regulations 
were to apply. 

(2) The adoption of easily recognizable marks of identification for both 
boats and gear. 

(3) The protection of a vessel already engaged in fishing from undue inter- 
ference by another boat arriving on the fishing grounds later. 

(4) Provision for the restoration to the owner of gear accidentally carried 
away or picked up at sea. 

(5) Provision for the prosecution of claims for compensation for damage 
in default of agreement. 

(6) The assessment and recovery of damages duly adjudged. 

(7) The prohibition of willful damage and enforcement of due diligence and 
care in releasing gear accidentally fouled. 

(8) The enforcement of the regulations by the national vessels of all the 
contracting powers, with right of arrest in case of necessity. 

RESULTS ACHIEVED. 

A quarter of a century's experience of the working of this convention — while 
showing that it is incomplete in many details and is capable of improvement in 
order to fit it to deal adequately with the changing conditions of the fishing 
industry — has demonstrated that, given a frank recognition of equal rights, it 
is possible so to harmonize the apparently conflicting interests of different classes 
of fishermen, belonging to different nationalities that a spirit of mutual forbear- 
ance will take the place of jealousy, ill feeling, and suspicion, and law and order 
will supplant violence and outrage. In this connection, two conclusions present 
themselves : ( 1 ) That these results can only be obtained by the assertion of the 
superior force of authority and (2) that a very slight display of the resources of 
duly constituted government power is sufficient to secure the observance of the 
regulations. In the absence of such show of authority, however, there will 
always be men, who, however familiar with the law, and however much accus- 
tomed to its observance wherever there is provision for its enforcement, will seize 



INTERNATIONAL REGULATIONS OF FISHERIES ON THE HIGH SEAS. IOI 

any opportunity of breaking it with impunity. The spirit underlying the con- 
ventions between Great Britain and France as regards the English Channel on 
the one hand, and between Great Britain and other powers as regards the 
North Sea on the other, is precisely the same, namely, a desire to secure to 
the subjects of each separate state the same protection from injury on the high 
seas that they would expect within the territorial domain of their respective gov- 
ernments. But the machinery for giving effect to this spirit is less complete in 
the case of the earlier conventions, and the result is that the same men who in 
the North Sea are careful to observe the law are apt to disregard its principles 
as soon as they cross the line which divides the North Sea from the English 
Channel, and as long as they are outside the line which separates territorial from 
nonterritorial waters. 

The moral of this appears to be that, once the authorities are agreed that good 
cause for interference exists, it is easy to take and to enforce the necessary meas- 
ures provided they are based on the generally accepted principles of law, order, 
and morality, and as long as they are founded on sufficient evidence as to the 
habits of fish and the effect of man's operations. Differences in legal procedure 
and practice involve a certain amount of difficulty, but in the cases above quoted 
this has been practically overcome by providing that a person charged with an 
offense shall be tried in the courts of the country to which he belongs, whatever 
the nationality of the officer arresting him. In this way mutual confidence in 
the sincerity of the authorities of the various contracting powers has been 
inspired; and with increasing evidence of a determination to maintain the ordi- 
nary principles of justice and right there have been displayed on the part of the 
fishermen themselves both a more general appreciation of the value of interna- 
tional regulations and also a sense of the greater security with which they can 
carry on their industry further and further afield — and this, after all, is only one 
indication of the increasing prosperity of the industry, which it is the ultimate 
aim and object of all such regulations to secure. 

INCREASING NEED FOR INTERNATIONAL AGREEMENT. 

Nevertheless, the greater the success of such regulations in this direction the 
greater is the variety of other interests involved. The further afield the fishermen 
of any State go, the more certainly will they be brought into closer relations with 
the fishermen of fresh nationalities, and the longer will be the list of States which 
find that they have interests in common — interests which will, sooner or later, 
call for combined action in the direction of international regulation of the 
fisheries on the high seas. Whether such regulations should aim at the pro- 
tection of the fishermen — either in their lives, their property, or their morals — 
or at the protection of the fisheries against overfishing must depend on circum- 
stances. So far as experience goes, the first object is the one most likely both 



102 BULLETIN OF THE BUREAU OF FISHERIES. 

to claim attention and to make good its claim. It is far easier to prove that the 
lives or property of fishermen are in danger than it is to establish any connec- 
tion between the fishing operations of the fishing fleets and the fluctuations in 
the yield of the fisheries, especially in the deep seas; and, as a preliminary to 
any effective steps for the protection of the fisheries on the high seas by way of 
international regulations, it will be found necessary to provide for international 
agreement as to the nature and extent of the statistical records to be kept and 
as to the method and scope of research into those natural phenomena which 
affect the productiveness of such fisheries more extensively than the combined 
operations of all the fishing fleets. 



LIBRAE OF 



CONGRESS 




